1. ACCEPTANCE: (The Inflatable Store, and HEC Plastics Manufacturing Corporation Qingdao, Ltd are both referred to as “TIS” in this entire document.) WE ACCEPT AND CONFIRM YOUR ORDER FOR THE ITEMS, GOODS AND PRODUCTS DESCRIBED ON THE COVER PAGE OF THIS CONFIRMATION OF ORDER. YOU AGREE TO THE TERMS AND CONDITIONS OF SALE SET FORTH ON THE COVER PAGE AND AS SET FORTH HEREINBELOW. NO DIFFERENT OR ADDITIONAL TERMS ARE ACCEPTABLE BY The Inflatable Store (“TIS”) UNLESS AGREED ON IN WRITING AND SIGNED BY TIS. THESE TERMS AND CONDITIONS ARE EXCLUSIVE AND IN LIEU OF ALL OTHER TERMS AND CONDITIONS APPEARING ON BUYER’S ORDER OR ELSEWHERE AND APPLY TO ALL QUOTATIONS MADE AND ORDERS ACCEPTED BY TIS UNLESS SPECIFICALLY STATED TO THE CONTRARY ON THE FACE OF THIS CONFIRMATION OF ORDER. TIS IS NOT RESPONSIBLE FOR TYPOGRAPHICAL OR CLERICAL ERRORS MADE IN ANY QUOTATIONS, ORDERS OR HEC PUBLICATIONS. 2. PAYMENT: PAYMENT SHALL BE MADE AS FOLLOWS: BUYER MUST MAKE A 50% DEPOSIT ON THE PRICE OF EACH CUSTOM MADE ITEM OR EACH ITEM NOT CURRENTLY IN STOCK AT THE TIME OF BUYER’S RETURN OF THIS CONFIRMATION OF ORDER. THE BALANCE IS DUE PRIOR TO THE DATE OF SHIPPING THE ITEM, WHICH DATE WILL BE PROVIDED TO BUYER BY TIS ON THE COVER PAGE OR AS SOON AS POSSIBLE. FOR ORDERS OF EQUIPMENT AND ITEMS IN STOCK, PAYMENT SHALL ACCOMPANY BUYER’S RETURN OF THIS CONFIRMATION OF ORDER. ALL FUNDS FOR PAYMENT SHALL BE IN U.S. DOLLARS IN THE FORM OF CASHIER’S CHECK, MONEY ORDER, WIRE TRANSFER, OR CREDIT CARD. DEPOSITS, BUT NOT FINAL PAYMENT, MAY BE MADE IN THE FORM OF BUYER’S CHECK, PAYABLE TO TIS. SHIPMENTS WILL NOT BE MADE C.O.D. TIS MAY REFUSE TO MANUFACTURE ANY ITEM UNLESS PAYMENT IN FULL IS FIRST RECEIVED WHENEVER, IN THE SOLE DISCRETION OF TIS, THERE IS DOUBT AS TO BUYER’S ABILITY TO PAY.
3. SHIPMENT: THE GOODS SHALL BE SHIPPED F.O.B. CARRIER TIS’ FACTORY, ORLANDO, FLORIDA. ALL RISK OF LOSS PASSES TO BUYER WHEN TIS DELIVERS THE ORDER, OR ANY PORTION THEREOF, TO THE CARRIER. IF BUYER DOES NOT SPECIFY A PREFERRED METHOD OF SHIPMENT, TIS SHALL EXERCISE SOLE DISCRETION IN SELECTING A METHOD OF SHIPMENT. HEC USES THE SERVICES OF MAJOR COMMON CARRIERS AND DELIVERY SERVICES AND, FOR FOREIGN ORDERS, FREIGHT FORWARDERS. ALL COSTS AND EXPENSES RELATING TO SHIPMENT, INCLUDING INSURANCE, CUSTOMS EXPENSES, DUTIES, TAXES, ETC. SHALL BE THE SOLE RESPONSIBILITY OF BUYER. TIS GENERALLY WILL SHIP FREIGHT COLLECT, UNLESS BUYER REQUESTS OTHER ARRANGEMENTS AND PREPAYS TIS FOR ALL SHIPPING EXPENSES. SHIPMENTS WILL BE INSURED AT BUYER’S EXPENSE UNLESS OTHERWISE SPECIFIED, AND TIS ASSUMES NO RESPONSIBILITY FOR PLACING OF VALUATION UPON A SHIPMENT UNLESS REQUESTED TO DO SO BY BUYER. PARTIAL SHIPMENTS OF ANY ORDER FROM BUYER MAY BE MADE BY TIS IN ORDER TO FACILITATE THE EARLIEST POSSIBLE DELIVERY OF THE ITEM ORDERED; PROVIDED, HOWEVER, THAT PARTIAL SHIPMENT SHALL NOT BE MADE UNLESS TIS HAS BEEN PAID IN FULL FOR THE ENTIRE ORDER.
4. DELIVERY: THE PROJECTED DELIVERY DATE IS TIS’ REASONABLE ESTIMATE, BASED ON CURRENT AND ANTICIPATED FACTORY LOADS, OF WHEN THE ORDER WILL BE SHIPPED. TIS SHALL NOT BE LIABLE FOR DAMAGE OR FOR DELAY IN DELIVERY ARISING FROM CAUSES BEYOND ITS CONTROL AND WITHOUT ITS FAULT OR NEGLIGENCE INCLUDING, BUT NOT LIMITED TO, ACTS OF GOD, ACTS OF GOVERNMENT, FIRES, FLOODS, EPIDEMICS, QUARANTINE RESTRICTIONS, STRIKES, FREIGHT EMBARGOES OR DELAYS, AND SEVERE WEATHER. IF THE DELAY IS CAUSED BY THE DELAY OR DEFAULT OF A SUBCONTRACTOR OF TIS AND IF SUCH DELAY ARISES FROM CAUSES BEYOND THE CONTROL OF EITHER TIS OR THE SUBCONTRACTOR, TIS SHALL NOT BE LIABLE TO BUYER IN DAMAGES.
5. LIMITED WARRANTY: TIS PROVIDES BUYER A LIMITED REPAIR AND REPLACEMENT WARRANTY AND AGREES AND WARRANTS ONLY THAT THE PRODUCTS, IDENTIFIED BY CATEGORY BELOW, WILL BE FIT FOR THEIR INTENDED PURPOSE, MERCHANTABLE, AND WITHOUT MATERIAL DEFECT IN WORKMANSHIP AND MATERIALS FOR THE PERIOD AND TYPES OF PRODUCT SPECIFIED AS FOLLOWS: |
A PRODUCT SHALL NOT BE CONSIDERED DEFECTIVE IF IT IS A DIFFERENT COLOR THAN SHOWN IN TIS’ CATALOGUE AND NO WARRANTY IS MADE RELATING TO COLOR. ALL REQUESTS OF BUYER FOR WARRANTY WORK AND REPLACEMENTS ARE SUBJECT TO PRODUCT INSPECTION AT TIS’ FACTORY IN ORLANDO, FLORIDA. BUYER MUST SHIP THE PRODUCTS TO TIS AT BUYER’S EXPENSE. ORDINARY WEAR AND TEAR WILL NOT INVALIDATE TIS’ LIMITED WARRANTY, BUT MISUSE, IMPROPER HANDLING OR STORAGE, IMPROPER REPAIRS, IMPROPER MAINTENANCE AND CARE, OR ACCIDENTAL, ABUSIVE OR NEGLIGENT TREATMENT OF THE PRODUCT WILL INVALIDATE TIS’ WARRANTY. BUYER MUST USE STAKES, TIE-DOWNS AND GROUND COVERS AT ALL TIMES TO ENSURE THE SAFETY OF USERS AND THE EQUIPMENT. THIS WARRANTY IS NOT A GUARANTEE THAT THE PRODUCT WILL NOT THROUGH USE, HANDLING AND STORAGE DEVELOP TEARS OR PUNCTURES FROM TIME TO TIME, THE REPAIR OF WHICH IS THE RESPONSIBILITY OF BUYER. IF A RETURNED PRODUCT IS EVALUATED AND FOUND DEFECTIVE, AND THE WARRANTY FOR SUCH PRODUCT IS IN FORCE, HEC WILL BEAR THE COST OF SHIPPING THE REPAIRED OR REPLACED PRODUCT TO BUYER; OTHERWISE, ALL SHIPPING COSTS WILL BE BORNE SOLELY BY BUYER. NO STATEMENT, REMARK OR REPRESENTATION OF ANY EMPLOYEE OR AGENT OF TIS MAY VARY THIS LIMITED WARRANTY UNLESS IN WRITING AND SIGNED BY THE PRESIDENT OF TIS.
6. INSPECTION: BUYER SHALL INSPECT THE PRODUCT(S) PROMPTLY AFTER RECEIPT AND SHALL NOTIFY TIS IN WRITING OF ANY CLAIMS, INCLUDING CLAIMS OF BREACH OF WARRANTY, WITHIN FIFTEEN(15) DAYS AFTER BUYER DISCOVERS OR SHOULD HAVE DISCOVERED THE FACTS UPON WHICH THE CLAIM IS BASED. FAILURE OF BUYER TO GIVE WRITTEN NOTICE OF A CLAIM WITHIN THE INSPECTION TIME PERIOD SHALL BE DEEMED TO BE A WAIVER OF A CLAIM FOR DEFECTIVE PRODUCTS, A WAIVER OF THE RIGHT TO REJECT THE GOODS, AND CONCLUSIVE PROOF THAT THE PRODUCT(S) WERE RECEIVED BY BUYER WITHOUT DEFECT(S).
7. DISCLAIMER: THE PROVISIONS OF PARAGRAPH 5 ARE TIS’ SOLE OBLIGATION AND TIS EXCLUDES ALL OTHER REMEDIES OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM THE COURSE OF DEALING OR USAGE AND CUSTOMS OF THE TRADE, WHETHER OR NOT SAID PURPOSES OR SPECIFICATIONS ARE DESCRIBED HEREIN. TIS FURTHER DISCLAIMS ANY RESPONSIBILITY WHATSOEVER TO BUYER OR TO ANY OTHER PERSON FOR INJURY TO PERSON OR DAMAGE TO OR LOSS OF PROPERTY OR VALUE CAUSED BY ANY PRODUCT WHICH HAS BEEN SUBJECTED TO MISUSE, NEGLIGENCE, OR ACCIDENT; OR MISAPPLIED; OR MODIFIED OR REPAIRED BY UNAUTHORIZED PERSONS; OR IMPROPERLY INSTALLED OR MAINTAINED.
8. LIMITATION OF LIABILITY: UNDER NO CIRCUMSTANCES SHALL TIS BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, DELAY OR SPECIAL DAMAGES, LOSSES OR EXPENSES ARISING FROM THIS CONFIRMATION OF ORDER OR TIS’ OR BUYER’S PERFORMANCE OR NONPERFORMANCE, OR ANY ACTS OR OMISSIONS OF TIS, OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE GOODS FOR ANY PURPOSE WHATSOEVER. IN ANY AND ALL EVENTS, IF TIS IS FOUND LIABLE FOR DAMAGES, NOTWITHSTANDING THE LIMITATIONS AND EXCLUSIONS OF PARAGRAPHS 7 AND 8, TIS SHALL NOT BE RESPONSIBLE FOR DAMAGES TO ANY PERSON OR ENTITY, INCLUDING BUT NOT LIMITED TO BUYER AND BUYER’S CUSTOMERS, FOR AN AMOUNT EXCEEDING THE AMOUNT PAID BY BUYER FOR THE PRODUCTS ORDERED AND CONFIRMED BY THIS CONFIRMATION ORDER.
9. TOLERANCES: ALL DIMENSIONS STATED IN THE CATALOGUES OR ELSEWHERE PERTAINING TO PRODUCTS SOLD BY TIS ARE APPROXIMATE AND WITHIN INDUSTRY TOLERANCES.
10. PATENTS: TIS MAKES NO WARRANTY THAT THE GOODS WILL BE DELIVERED FREE OF THE RIGHTFUL CLAIM OF ANY THIRD PARTY BY WAY OF INFRINGEMENT OR THE LIKE. IF TIS DETERMINES, IN ITS SOLE DISCRETION, THAT MAKING, USING, OR SELLING THE GOODS WOULD RESULT IN THE INFRINGEMENT OF ANY PATENT, TIS RESERVES THE RIGHT TO CEASE MANUFACTURING AND/OR SHIPPING THE PRODUCT, WITHOUT LIABILITY TO BUYER.
11. MODIFICATIONS: PRICES ARE SUBJECT TO ADJUSTMENT IF BUYER REQUESTS CHANGES IN SPECIFICATIONS, QUANTITIES, OR DELIVERY REQUIREMENTS. ALL PARAGRAPHS OF THIS CONFIRMATION OF ORDER SHALL APPLY TO THE GOODS TO WHICH SUCH CHANGES APPLY, AND NO MODIFICATION OF THE TERMS AND CONDITIONS HEREOF SHALL BE BINDING ON TIS UNLESS CONTAINED IN A WRITING SIGNED BY TIS AND EXPRESSLY STATING BOTH THAT SUCH TERMS ARE BEING MODIFIED AND THE NATURE OF SUCH MODIFICATION. THIS ORDER CANNOT BE CHANGED WITHIN THE TWO (2) WEEK PERIOD PRIOR TO THE PROJECTED SHIPMENT DATE UNLESS TIS AND BUYER MUTUALLY AGREE TO AN APPROPRIATE CHANGE ORDER FEE AND AN APPROPRIATE NEW SHIPMENT DATE, IF APPLICABLE.
12. CANCELLATION: BUYER MAY CANCEL THIS ORDER, IN WHOLE OR IN PART, UPON WRITTEN NOTICE TO TIS ON OR BEFORE THE FOURTEENTH DAY PRIOR TO THE PROJECTED SHIP DATE. UNLESS CANCELED ON OR BEFORE THE FOURTEENTH DAY PRIOR TO PROJECTED SHIPMENT DATE, BUYER SHALL BE LIABLE FOR THE PAYMENT OF CANCELLATION CHARGES, WHICH CHARGES SHALL BE THE SUM OF (1) THE PRICE OF ALL GOODS THAT HAVE BEEN DELIVERED AND NOT PREVIOUSLY PAID FOR, PLUS (2) THE ACTUAL COST INCURRED BY TIS THAT IS PROPERLY ALLOCABLE TO THE GOODS NOT DELIVERED AT THE TIME OF DECREASE OR CANCELLATION, INCLUDING, WITHOUT LIMITATION, THE COST OF COMPONENTS AND MATERIALS PURCHASED FOR USE IN PRODUCING SUCH GOODS, PLUS (3) THE PROFIT, AND REASONABLE OVERHEAD THAT TIS WOULD HAVE MADE FROM FULL PERFORMANCE BY TIS, PLUS (4) THE COSTS OF ENGINEERING, PROTOTYPES, TESTING, TOOLING, AND SIMILAR ITEMS PRODUCED FOR BUYER, PLUS (5) THE REASONABLE COSTS INCURRED BY TIS IN MAKING SETTLEMENT AND EFFECTING COLLECTION HEREUNDER. IN NO EVENT WILL THE FEE FOR BUYER’S ULTIMATELY CANCELLATION OF AN ORDER BE LESS THAN TEN PERCENT (10%) OF THE TOTAL ORDER, BUT NO SUCH CANCELLATION FEE WILL BE IMPOSED IF BUYER COMPLIES WITH THE FIRST SENTENCE OF THIS PARAGRAPH 12.
13. RETURNS POLICY: FOR ANY ITEM PURCHASED FROM TIS AND RETURNED FOR REASONS UNRELATED TO A WARRANTY CLAIM, A RESTOCKING FEE OF TWENTY-FIVE PERCENT (25%) OF THE PRICE OF THE ITEM(S) RETURNED WILL BE PAID BY BUYER.
14. TAXES: ALL CHARGES ARE SUBJECT TO THE FEDERAL, STATE AND LOCAL TAXES, IF ANY, PERTINENT AT THE POINT OF DELIVERY. BUYER SHALL PAY SUCH TAXES IMPOSED ON THIS ORDER, AND ALL PENALTIES AND INTEREST, IF ANY, ACCRUED THEREWITH.
15. INTERPRETATION: THE RIGHTS AND LIABILITIES ARISING OUT OF THIS CONTRACT WITH TIS SHALL BE DETERMINED UNDER THE UNIFORM COMMERCIAL CODE AS ENACTED IN FLORIDA, WITHOUT APPLICATION OF CHOICE OF LAW RULES OR THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE SALE OF GOODS (AS TO FOREIGN SHIPMENTS).
16. EFFECT OF BREACH ON RISK OF LOSS: BREACH OF THIS CONTRACT BY TIS SHALL HAVE NO EFFECT ON THE PROVISIONS CONTROLLING THE RISK OF LOSS OF THE GOODS, AND SECTIONS 2?510(1) AND 2?510(2) OF THE UNIFORM COMMERCIAL CODE SHALL HAVE NO EFFECT ON THIS CONFIRMATION OF ORDER.
17. USE AND INDEMNIFICATION: BUYER IS SOLELY RESPONSIBLE FOR THE MANNER OF USE OF THE PRODUCTS AND OTHER EQUIPMENT. BUYER IS SOLELY RESPONSIBLE FOR ALL SIGNAGE, LABELS AND WARNINGS TO CONSUMERS OR OTHER USERS OF THE PRODUCTS AND EQUIPMENT, AND FOR ANY AND ALL OTHER ACTS NECESSARY, INCLUDING USER WARNINGS AND LIMITATIONS (E.G., WEIGHT, HEIGHT, AGE, MEDICAL CONDITION LIMITATIONS), TO ENSURE THE SAFETY OF THE USERS. BUYER SHALL USE STAKES, TIE-DOWNS, AND OTHER APPLICABLE DEVICES NECESSARY TO ENSURE THE SAFETY OF USERS. BUYER AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND TIS FROM ACTIONS AND CLAIMS OF THIRD PARTIES, INCLUDING CUSTOMERS OF BUYER AND USERS OF THE GOODS AND PRODUCTS SOLD TO BUYER, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE GOODS AND PRODUCTS HEREIN DESCRIBED OR RESULTING FROM THE BREACH OF THE PROVISIONS IN THIS CONFIRMATION OF ORDER BY BUYER. IN THE EVENT TIS IS REQUIRED TO COMMENCE AN ACTION TO ENFORCE THIS PROVISION, BUYER SHALL PAY ALL OF TIS’ LEGAL COSTS AND EXPENSES.
18. INTEGRATION: THERE ARE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE EXCEPT THOSE HEREIN CONTAINED, AND NO AGREEMENTS OR WAIVERS COLLATERAL HERETO SHALL BE BINDING ON EITHER PARTY UNLESS IN WRITING AND SIGNED BY BUYER AND ACCEPTED BY TIS. THIS CONFIRMATION OF ORDER CONTAINS ALL OF THE PROMISES, WARRANTIES, TERMS AND CONDITIONS OF THE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ANY AND ALL ORAL OR IMPLIED PROMISES, UNDERTAKINGS AND PRIOR AGREEMENTS.
19. GOVERNING LAW, JURISDICTION AND VENUE: IN THE EVENT OF LITIGATION BETWEEN THE PARTIES CONCERNING THE ORDER OR ANY PRODUCT SHIPPED TO BUYER HEREUNDER, SUCH ACTION SHALL BE GOVERNED BY THE LAWS OF FLORIDA, U.S.A. VENUE SHALL BE IN ORANGE COUNTY, FLORIDA, AND THE ACTION SHALL BE BROUGHT IN THE FLORIDA OR FEDERAL COURTS OF APPROPRIATE JURISDICTION. |
